Can I obtain a deed by prescriptive easement or adverse possession on a place that I have been paying the taxes on?

UPDATED: Aug 19, 2011

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Can I obtain a deed by prescriptive easement or adverse possession on a place that I have been paying the taxes on?

I have been living in my grandfather’s house for over 20 years. He passed away 5 years ago and left no Will. And up until last year I had been living there with not too many problems from his kids. Last year my uncle (his son) thought he was going to move in with me and me take care of him, so tried taking over the house. I have been paying the property taxes for over 5 years because my grandfather and I paid them from a joint bank account before he passed away. He typed up a paper stating the house was suppose to be mine; there were 2 witnesses.

Asked on August 19, 2011 West Virginia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Unfortunately, from what you have written, you do not have any rights to the home, *except* possible as per 2), below:

1) To begin with, with no will, the house passed by intestate succession. That means that in this case, if your grandmother was not still alive, the house went to his children--they would be the owners. However see below--there is a slight chance that the piece of paper you describe may be a will.

2) The typed and witnessed paper has no effect unless it met the requirements to be considered a will. If it did, the house would go to you. If it was written as a will and intended to be a will, it *might* qualify, having been witnessed by two people; bring the paper to a trusts and estates attorney to see both if it mees the requirements to be a will and if you can do anything with it after 5 years. If it is not a will, however, it has no effect in directing the distribution of his home.

3) In WV, you have had to be openly claiming the property as you own for at least 10 years, and living there without the permission of the rightful owners (if you're there with permission, you can't claim adversely). Since your grandfather only passed away 5 years ago and you were living with him prior to that (i.e. with his permission), you can't qualify.

4) Paying the property taxes will not give you an ownership in the home in a case like this; it could easly be argued that you were paying them as your "rent" to stay there.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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